ABDUL SAMI KHAN, J.--- Muhammad Lateef appellant along with Mst. Nagina accused (since acquitted) were tried by the learned Additional Sessions Judge, Jhelum in case FIR No.124/2007 dated 20.04.2007 under sections 337 A(i), 337 A(iii), 34, P.P.C. later on section 302, P.P.C. was added registered at Police Station Saddar Jhelum, who vide. judgment dated 19.01.2010 convicted the appellant and sentenced him as under?
Under Section 302(b), P.P.C. to imprisonment for life and to pay compensation of Rs.1,00,000/- under section 544-A, Cr.P.C. to the legal heirs of Muhammad Aslam Pasha deceased, in default thereof, to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. was also extended in his favour.
Muhammad Lateef appellant has challenged his conviction and sentences through the instant criminal appeal, whereas Mst. Khursheed appellant/complainant has filed Criminal Appeal No. 161 of 2010 against the acquittal of accused Mst. Nagina and Mst. Khursheed petitioner/complainant has also filed Criminal Revision bearing No.70 of 2010 for the enhancement of sentences awarded by the learned trial Court to the appellant.
2. Brief facts of the case as narrated by complainant Muhammad Aslam Pasha in complaint Ex.PK and FIR Ex.PF are that on 20.04.2007 he was erecting gate of his house through meson and labours that at about 11.45 a.m. Muhammad Lateef alias Malik son of Badar-uz-Zaman along with his daughter Mst. Jeena (Mst. Nagina) came there while abusing and stopped the meson and labours to dig out the foundations on which the complainant protested then Muhammad Lateef lifted piece of bricks and throw upon the complainant which hit him on left side of his head and he fell down.
Upon which both the father and daughter gave brick-bat blow on right and left side of head. On his hue and cry, Zafar Mehmood Dar and other people of Mohallah came there.
The motive behind the occurrence as stated by complainant Muhammad Aslam Pasha deceased was about dispute of gate.
3. After registration of FIR, the. complainant Muhammad Aslam Pasha expired on 24.04.2007 and offence under section 302, P.P.C. was added and investigation of the case was conducted by Fazal Dad Sub-Inspector and after completion of investigation, reported under section 173, Cr.P.C. was submitted against the appellant and his co-accused. At the commencement of trial, the learned trial Court after observing legal formalities provided in the Code of Criminal Procedure 1898 framed charge against the accused, to which they pleaded not guilty and claimed trial, hence, the prosecution was asked to produce its evidence.
4. To substantiate its version at trial, the prosecution produced fifteen witnesses before the learned trial Court. Ocular account was furnished by Khalid Mehmood Nakash (PW.11) and Zafar Mehmood (P.W.12). Dr Ejaz Ahmad Sheikh (PW.4) medically examined Muhammad Aslam Pasha in injured condition whereas Dr. Anjum Riaz conducted postmortem examination on the dead body of Muhammad Aslam Pasha deceased on 24.4.2007. Nazim Abbas SI (PW.9) stated about different steps taken by them during the course of investigation of instant case. The remaining prosecution witnesses, more or less, are formal in nature.
5. After completion of the prosecution evidence, the learned trial Court went on to record the statements of accused under. section 342, Cr.P.C. wherein they professed innocence and pleaded false implication in the case. They did not opt to get record their statements under section 340(2), Cr.P.C. in disproof of allegations leveled against them, however produced death certificate of deceased as Ex.DA in their defence.
6. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence Muhammad Lateef appellant as mentioned in paragraph No.1 of this judgment and vide the same judgment, Mst. Nagina accused was acquitted of the charge by extending benefit of doubt in her favour.
7. Learned counsel for the appellant submitted that the prosecution has miserably (sic) failed to bring the guilt of the appellant to appeal against acquittal and criminal revision for enhancement of sentences of the appellant, learned counsel submits that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, so the appellant deserve clean acquittal and the appeal against acquittal as well as criminal revision deserve dismissal. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, thus the impugned judgment to the extent of conviction of the appellant does not call for any interference by this Court. While arguing on criminal revision, learned counsel for the petitioner/complainant contended that there is no mitigating circumstance in favour of the respondent/ appellant, so the learned trial Court erred by awarding lesser sentence of imprisonment for life to the respondent/ appellant, hence prayed for enhancement of sentences awarded to him from life imprisonment to death sentence. Similarly, Mst. Nagina respondent be also convicted and sentenced in accordance with law.
8. I have considered the arguments advanced by learned counsel for the appellant, learned Deputy Prosecutor General and learned counsel for the complainant and have carefully gone through the entire record of this case with their valuable assistance.
9. It is a case where one person namely Muhammad Aslam Pasha son of Muhammad Afzal was done to death. The occurrence was witnessed by Khalid A Mehmood PW-11 and Zafar Mehmood PW-12, real brothers of the deceased. Initially, on 20.04.2007, the case was registered under sections 337-A(iii), 337-A(i), 34, P.P.C. on the statement of Muhammad Aslam Pasha and subsequently on 24.04.2007 on the death of Muhammad Aslam. Pasha Section 302, P.P.C. was added by Nazim Abbas Shah ASI (PW-9). The case of the prosecution is that Muhammad Aslam deceased was installing gate in the boundary wall of his house, in the meanwhile Muhammad Latif (appellant) and his daughter Mst. Nagina alias Gina (acquitted co-accused) came there. They stopped the labourers to dig out the foundation and installing the gate. On the protest of Muhammad Aslam Pasha (deceased), Muhammad Latif (appellant) by, taking brick bat from the place of occurrence, pelted upon Muhammad Aslam Pasha (deceased) which hit him on the left side of his head, who fell down and in falling condition Muhammad Latif (appellant) and his daughter Mst. Nagina alias Gina (acquitted co-accused) gave blows with pieces of brick to Muhammad Aslam Pasha (deceased) hitting on right and left side of his head. The FIR (Ex.PF) was registered on the statement of Muhammad Aslam Pasha (deceased) on the same day at 3.30 p.m.who died after four days of the recording of his statement. The said statement is of much importance. The complainant has attributed a specific role to the appellant for causing injury to him. It is a case of promptitude FL, which rules out chances of consultation and deliberation.
10. Khalid Mehmood and Zafar Mehmood are the witnesses of ocular account. They appeared before the learned trial Court as PW- 11 and PW-12 respectively and supported the story narrated in FIR (Ex.PF). In their statements before the learned trial Court, both Khalid Mehmood (PW-11) and Zafar Mehmood (PW-12) have ascribed specific role to the appellant of causing injuries to the deceased. They were subjected to lengthy cross-examination but without extracting any beneficial statement to help the convict. Nothing was extracted from their mouths to create doubt regarding their presence at the spot. They stood firm to the test of cross-examination and their presence at the place of occurrence at the relevant time remained un-shattered. The occurrence took place adjacent to the house of eye-witnesses; who are brother inter-se and being resident of same village, they were well known to the accused/appellant, thus, there was no question of mistaken identity of the appellant at the time of occurrence. Viewing the testimony of the eye-witnesses, we do not find any material on the basis of which it can be construed that they had any motive or to falsely implicate the appellant in the murder of his own brother. During arguments, the defence could not point out even a single material contradiction or improvement in the statements of eye- witnesses namely Khalid Mehmood PW-11 and Zafar Mehmood PW-12.
11. Dr. Anjum Riaz, had conducted post mortem examination on the dead body of Muhammad Aslam Pasha (deceased) on 24.04.2007 at 11.00 p.m. The Doctor in his evidence described the injuries on the body of the Muhammad Aslam Pasha deceased which lend support to the prosecution case. After evaluating the medical evidence side by side with ocular account, I am of the considered view that the medical evidence has provided full support to the ocular account and there is no infirmity, inconsistency or contradiction between the ocular account and medical evidence, hence, the prosecution has successfully proved its case beyond any shadow of doubt against the appellant. Thus it is established on record that Muhammad Latif appellant had committed the murder of Muhammad Aslam Pasha deceased.
12. For what has been discussed above and keeping into consideration the testimony of the eye- witnesses, supported by the medical evidence, I have come to a definite conclusion that prosecution has successfully proved its case against the appellant beyond any shadow of doubt but at the same time I have noted some intrinsic facts in this case regarding the quantum of sentence awarded to the appellant. A bare perusal of the FIR the statement made by the complainant (deceased) as well as the eye-witnesses before the learned trial Court it has been observed by this court that the occurrence took place without premeditation and consultation. The weapon of offence used in the incident is piece of brick which ordinarily is not a weapon of offence and possibility cannot be ruled out that the appellant has grabbed a piece of brick from the spot and in the heat of passion pelted on the deceased which hit him on his head who died after four days of the occurrence. The occurrence took place without any background of any or bitterness between the parties and the occurrence had erupted all of a sudden without' any premeditation.
According to police file at the time of occurrence Muhammad Latif appellant was 77 years of age and the occurrence took place on 20.04.2007 and now admittedly he is more than 85 years and bearly standing on his legs. The co-accused of the appellant namely Mst. Nagina Shaheen ascribing the E same role has been acquitted by the learned trial Court.
13.In view of the discussion hereinabove, I have come to a definite conclusion that this case squarely falls under section 302(c), P.P.C. as conceded by the learned counsel for the complainant.
It has been held by the Hon'ble Supreme Court of Pakistan in PLD 1996 SC 274, that the cases covered by exceptions contained in provisions of section 300, P.P.C., now attract the provisions of section 302(c), P.P.C. The august Supreme Court of Pakistan in a case titled "Azmat Ullah v. The State (2014 SCM R 1178) held as under:-- "Conviction under S. 302(b), P.P.C. converted into 5.302(c), P.P.C. Sentence, reduction in---Sudden fight/quarrel---Lack of premeditation and ill-will---Single knife blow effect---Accused allegedly caused fatal knife injuries to his deceased-brother due to a sudden quarrel between them.
Accused was convicted under Section 302(b), P.P.C. and was sentenced to 25 years imprisonment along with a fine of Rs.100,000--- Validity---Perusal of FIR, statements of eye-witnesses and findings of courts below clearly showed that there was no background of any or ill will bitterness between the accused and his deceased brother. Incident in issue had erupted all of a sudden Without any premeditation whatsoever. Medical evidence showed that injuries on the body of deceased could be the result of one knife blow. Present case was one of sudden quarrel and no undue advantage had been taken by the accused nor had he acted in a brutal or unusual manner. Such factors-----squarely------attracted Exception 4 contained in erstwhile provisions of section 300, P.P.C. thus case against accused fell within the purview of provisions of Section 302(c), P.P.C. Conviction of accused under Section 302(b), P.P.C. was converted into section 302(c), P.P. C. and consequently his sentence was reducedfrom rigorous imprisonment for 25 years to rigorous imprisonment for 10 years. Fine imposed on accused was unwarranted, because sections 302(b) and (c), P.P.C. did not contemplate any such sentence. Supreme Court directed that instead of a fine, accused should pay sum of Rs.50,000/- to the heirs of deceased by way of compensation under section 544-A, Cr. P. C.
As this case squarely a case of lack of premeditation so, the conviction and sentence of Muhammad Latif appellant under section 302(b), P.P.C. is set aside and he is convicted under section 302(c), P.P.C. and is sentenced to imprisonment already undergo i.e. four years and eleven months. The amount of compensation i.e. Rs.1,00,000/- as envisaged under section 544-A, Cr.P.C. is also reduced to Rs.50,000/-, in default whereof, Muhammad Latif appellant shall have to further undergo simple imprisonment for three months. Resultantly, Criminal Appeal No.67 of 2010 stands dismissed with the above modifications in the conviction and sentences.
14. So far as Criminal Appeal No.161 of 2010 filed by Mst. Khurshid petitioner/ wife of Muhammad Aslam Pasha (deceased) against the acquittal of Mst. Nagina Shaheen respondent is concerned, although the respondent is named in FIR (Ex.PF), yet the fact remains that no specific injury is attributed to the respondent by the complainant. The respondent is real daughter of the appellant, so possibility of false implication of respondent by the complainant by spreading the net wide cannot be rule out of consideration as it is common phenomenon in our society that people do involve the whole family so that nobody would left behind to pursue the case.
15. Law is well settled by now that the standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between reappraisal of evidence in the appeal against conviction and in the appeal against acquittal. In appeal against conviction appraisal of evidence is done strictly and in appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial court after proper analysis of record. In appeal against acquittal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. As held by the Hon'ble Supreme Court of Pakistan in "Muhammad Usman and 2 others v. The State" (1992 SCMR 498), and "The State v. Muhammad Sharif and others" (1995 SCM R 635), the ordinary scope of appeal against acquittal of accused/respondent is considerably narrow and limited. I am of the view that the acquittal of Mst.
Nagina Shaheen did not suffer from any illegality so as to call for our interference with the impugned judgment to her extent. The learned trial Court has advanced valid and cogent reasons for passing the findings of acquittal in favour of respondent and I see no legal justification to disturb the same. Even otherwise, when a court of competent jurisdiction acquits an accused of the charge, then double presumption of innocence will always attach with the order of acquittal and very strong and exceptional grounds are required to set aside the order of acquittal. Reference can be made to the case of Ifiikhar Hussain and others v. The State (2004 SCM R 1185) wherein the Hon'ble Supreme Court of Court has held as under:-- "It is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very careful in dislodging such presumption. Undoubtedly, two views are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, it is always insisted that the Court should follow the recognized principles for interference in the acquittal judgment as held in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 that the Appellate Court seized with the acquittal appeal under section 417, Cr. P. C. is competent to interfere in the order challenged before it provided it has been established that the trial Court has disregarded material evidence or misread such evidence or received such evidence........."
16. For what has been discussed above, Criminal Appeal No.161 of 2010 is dismissed.
17. In view of discussion made in preceding paragraphs Criminal Review No.70 of 2010 filed by Mst.
Khurshid petitioner/wife of Muhammad Aslam Pasha (deceased) for enhancing the sentence of appellant in dismissed.